280

Forfeiture of Assets Located in Foreign
Countries

Any attorney for the Federal government who plans to file a
civil
forfeiture action for assets located in another country pursuant to
28 U.S.C.
§ 1355(b)(2) is directed to notify the Office of International
Affairs (OIA)
of the Criminal Division before taking such action. Notification
to the Office
of International Affairs should be in writing and set forth the
following
information:

a precise description of the assets subject to forfeiture;

identification of the foreign country in which the assets are
located and
specific information as to their exact location (e.g., city, bank,
account number
and/or name);

a brief description of the facts supporting the proposed
forfeiture, particularly
the acts or omissions occurring in the district requesting
concurrence;

identification of any other known districts which might have a
claim to seeking
forfeiture of the same assets and/or which have charges pending
against the
defendant/owner of the assets in question; and

a description of any contact or communication already undertaken by
the pertinent
government attorney or U.S. law enforcement agents with the U.S.
Embassy in the
foreign country involved or with any officials or law enforcement
authorities of
that country concerning the assets, their potential forfeitability,
or the
offenses or criminal case underlying the proposed forfeiture.

BACKGROUND: As amended in 1992, 28 U.S.C. § 1355, the
statute vesting
U.S. district courts with original jurisdiction in civil forfeiture
cases,
provides in subsection (b)(2) that when property that is
forfeitable under U.S.
law is located in a foreign country or has been seized or detained
pursuant to
foreign law, an action for forfeiture can be brought against the
property in the
U.S. District Court for the District of Columbia, the district in
which any of
the acts or omissions giving rise to forfeiture occurred, or any
district where
venue is authorized under 28 U.S.C. § 1395 or any other venue
statute (e.g.,
18 U.S.C. § 981(h) or 21 U.S.C. § 881(j).

The extraterritorial jurisdiction provided by 28 U.S.C. §
1355(b)(2)
gives Federal prosecutors a powerful mechanism to deprive criminals
and criminal
enterprises of the proceeds and instrumentalities of their illegal
activities,
wherever those assets may have been transferred. The ability to
obtain civil
forfeiture orders in the United States for property abroad can
result in
substantial benefits to international forfeiture efforts, both by
facilitating
the repatriation of illicit assets to this country for disposition
and sharing
under U.S. law and by providing a means to assist foreign
governments in the
confiscation and disposition of assets pursuant to their own laws.

Despite the potential benefits involved, certain issues of
foreign
sovereignty and domestic resource allocation and coordination are
raised by the
jurisdictional law relating to forfeitable property abroad. For
instance, there
are some countries which may perceive the mere filing of a
forfeiture action here
against property within their borders as an affront to or
infringement on their
sovereign prerogatives. The invocation or attempted enforcement of
extraterritorial forfeiture jurisdiction in such circumstances
could well prove
prejudicial to legitimate foreign policy interests or to other law
enforcement
initiatives or activities involving the country in question.
Moreover, when it
is known or can be ascertained in advance that a particular foreign
government
either cannot or will not recognize, enforce, or otherwise make
beneficial use
of a forfeiture order obtained in this country, it would clearly be
a waste of
U.S. prosecutorial and judicial resources to pursue the forfeiture
action.

The broad grant of authority in 28 U.S.C. § 1355(b)(2)
also raises
potential problems with conflicts between or duplicative efforts by
different
districts asserting jurisdiction over the same assets in other
countries. It is
not uncommon for major criminals to have charges pending against
them and their
organizations in a number of districts in the United States, each
of which could
have an arguable claim to the foreign assets of the defendant or
his illicit
enterprise. Even in the absence of pending charges, various
districts might be
able to argue that certain "acts or omissions giving rise to
forfeiture" occurred
within their territory. The filing of multiple extraterritorial
forfeiture
actions for the same property would clearly not be a wise use of
U.S. time and
effort, and the presentation of multiple forfeiture orders to the
foreign
government in question would likely be both confusing and
counterproductive.